ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2005-01155
            INDEX NUMBER: 107.00

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  17 April 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be awarded the Purple Heart (PH).

_________________________________________________________________

APPLICANT CONTENDS THAT:

On or about 27 August  1951,  during  the  occupation  of  Germany,  he  was
injured by a Nazi Schutzstaffel  [Protective  Squadron]  (SS)  Officer,  who
deliberately drove a tractor into the front of  the  military  jeep  he  was
riding in while on official Air Force business.  Since he was injured by  an
enemy combatant that the United States had been engaged with in  a  time  of
war, he should be awarded the PH.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the  Regular  Air  Force  on  30  September  1947.
Military medical record entries indicate that  on  21 August  1951,  he  was
treated with a butterfly dressing for a small  laceration  to  his  shoulder
sustained during a car accident on 21 August 1951 and that he  was  slightly
under the influence of alcohol; that on 22 August 1951, he was treated  with
heat for a contusion of his shoulder; and that on 23  and  24  August  1951,
and 8 September 1951, he was treated with radiant heat for a stiff  shoulder
and painful forearm on exercise.  He voluntarily retired  in  the  grade  of
senior master sergeant on 1 July 1971.

On  4  March  2005,  the  Air  Force  Purple  Heart  Review  Board  (AFPHRB)
considered and denied applicant’s request for the PH.

On 13 July 2005, the Board considered and  denied  applicant’s  request  for
the PH.  For an accounting of the facts and  circumstances  surrounding  the
applicant’s separation, and the rationale of the  earlier  decision  by  the
Board, see the Record of Proceedings at Exhibit F.

On  30  November  2005,  the  applicant  requested  reconsideration  of  his
request; however, on 15 December 2005, he was advised that his  request  did
not meet the criteria for reconsideration by the Board (Exhibits G and H).

In a letter to the Secretary of the Air Force, dated 24 February  2006,  the
applicant requested reconsideration of his request;  however,  on  20  March
2006, he was advised  that  his  request  did  not  meet  the  criteria  for
reconsideration by the Board (Exhibits I and J).

In letters to the AFBCMR, dated 22 March 2006, 19 May 2006, and a letter to
the  Principal  Deputy  General  Counsel,  USAF,  the  applicant  requested
reconsideration and provided  additional  evidence.   Applicant’s  complete
submissions are at Exhibits K through O.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFRBA Senior Legal Advisor states that  in  accordance  with  the  Joint
Resolution of Congress, the state of  war  with  Germany  was  not  in  fact
terminated until 19 October 1951, and in his legal opinion,  the  former  SS
officer in the case who allegedly used his vehicle  as  a  weapon  would  be
considered an enemy, or the agent of an enemy,  of  the  United  States  for
purposes of Purple Heart (PH) entitlement.  This is in  spite  of  the  fact
that his activities may have been a violation of a cease fire,  or  the  law
of war.  A representative of SAF/GC  that  has  looked  at  this  issue  and
concurs.

The AFRBA Senior Legal Advisor opinion, with attachment, is at Exhibit P.

AFPC/DPPPR has reevaluated the evidence  of  record  and  the  documentation
provided by applicant, and still supports the 2005 AFPHRB decision  to  deny
applicant’s request for the PH.  Although  the  applicant  provided  a  memo
five years after the accident from  the  squadron  adjutant  to  the  TUSLOG
Commander, reflecting the intent  by  the  TUSLOG  Commander  to  award  the
applicant the PH, there is no  official  documentation  verifying  approval.
His medical records indicate that on 21 August 1951 he was  involved  in  an
automobile accident in Wiesbaden, Germany, and  received  small  lacerations
to the shoulder region.  However, nowhere in his records does it state  that
he was wounded as a direct result of enemy action.  Although his injury  was
determined to be in the line of duty, his medical records  indicate  he  was
“slightly under the influence of alcohol” during the time of  the  accident.
He provides no eyewitness statements from the others riding in  the  vehicle
during the accident to validate his claim.

The AFPC/DPPPR evaluation is at Exhibit Q.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

He strongly objects to the inflammatory comment that he was  slightly  under
the influence of alcohol.  Whether or nor he  was  under  the  influence  of
alcohol [and he was not] has nothing to do  with  the  issue.   He  was  the
passenger in the jeep and the injury was classified as being in the line  of
duty.  Furthermore, eyewitnesses statements are only required for  Prisoner-
of-War (POW) issues and even then there is a caveat.  His injury was  not  a
superficial laceration, but one that  required  follow  up  treatment.   The
Board continues to ignore the “Best Evidence Rule,” in that if the  original
documents are lost, the documents presented in lieu of the  originals  would
be considered the “best evidence.”  In this regard, since his  records  have
been destroyed by fire, the Board should consider the  duplicate  copies  he
has provided and give them the same weight as the originals.  The  governing
regulation specifically states the wound for which the award of  the  PH  is
made must have required treatment by a  medical  officer  and  there  is  no
question that he received medical treatment  as  evidenced  by  his  medical
records.

The applicant’s complete responses, with attachments, are at Exhibits S  and
T.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    After thoroughly reviewing the evidence of record and the  applicant’s
recent submissions, a majority of the Board remains unpersuaded that he  has
provided any corroborative evidence  to  support  his  contention  that  his
injury meets the criteria for entitlement to the  Purple  Heart  (PH).   The
applicant contends that he is entitled to the PH for an injury  he  received
while on official duty as a courier carrying classified documents  when,  on
or about 27 August 1951, a former  Nazi  SS  officer  deliberately  drove  a
tractor into the front of the military jeep he was riding in;  however,  due
to several reassignments within the  12  months  immediately  following  the
incident, the paperwork approving the PH was lost.  He further  states  that
as a  result,  he  is  not  receiving  his  full  disability  pay  and  full
retirement pay, creating a financial hardship on himself and his family.

2.    The SAF/MRB Senior Legal Advisor has provided  an  opinion  indicating
that since the state of war with Germany was not in  fact  terminated  until
19 October 1951, the former Nazi SS officer would  be  considered  an  enemy
(or the agent of an  enemy)  of  the  US  for  purposes  of  determining  PH
entitlement.  We note that  during  the  period  in  question,  the  PH  was
awarded for wounds received in action against the  enemy,  or  as  a  direct
result of enemy action.  For the purpose of determining  PH  entitlement,  a
wound was defined as an injury to any part  of  the  body  from  an  outside
force, element (referring to  weather  and  permitting  award  to  personnel
severely frostbitten while actually engaged in combat), or  agent  sustained
as the result of a hostile act of the enemy or while in action in  the  face
of the enemy.  While the applicant is  correct  that  eyewitness  statements
are not required since the governing  regulation  provided  that  a  wounded
soldier’s unsupported statement may be accepted in  unusual  or  extenuating
circumstances when, in the opinion of  the  officer  making  the  award,  no
corroborative evidence is obtainable, the statement was to be  substantiated
if possible.  A majority of the Board does not  find  any  such  unusual  or
extenuating circumstances in the applicant’s case or that he was  unable  to
obtain corroborative evidence at the time the incident occurred from  either
the authorities responding to the accident, other passengers, or the  driver
of the jeep (who would be similarly situated and possibly  seek  entitlement
to the PH).  To the contrary, a majority of the Board finds it unusual  that
he has  no  official  documentation  of  some  type,  i.e.,  police  report,
newspaper article, etc., to support his claim.

3.    The applicant’s military medical records indicate  that  on  21 August
1951, he was treated with a butterfly dressing for  a  small  laceration  to
his shoulder sustained during a car accident  on  21 August  1951,  and  the
injury was determined to have been incurred in the line of duty; that on  22
August 1951, he was treated with heat for a contusion of his  shoulder;  and
that on 23 and 24 August 1951, and 8 September 1951,  he  was  treated  with
radiant heat for a stiff shoulder and  painful  forearm  on  exercise.   The
evidence of record also indicates that in 1951  and  1956,  the  applicant’s
command inquired as to whether the Commander, United  States  Air  Force  in
Europe (USAFE/CC) had approved issuance of the PH for  his  injury;  that  a
personal “radnote” [radio  note]  from  the  Commander,  The  United  States
Logistics Group (TUSLOG) was sent to the Chief of Staff,  USAFE,  expressing
a desire to award the applicant the PH prior to his reassignment from  their
command; and that the personnel section was directed to continually  monitor
the status of the PH inquiry.  Given the presumption of  regularity  in  the
conduct of governmental affairs, noting the 1956  correspondence  indicating
the continuous-monitoring of the  issue  at  the  direction  of  the  TUSLOG
commander, and in  the  absence  of  evidence  that  the  USAFE/CC  approved
issuance of the PH,  a  majority  of  the  Board  assumes  the  request  was
thoroughly reviewed by the USAFE/CC and the determination made that  it  did
not meet the criteria for entitlement to the PH.  Moreover,  a  majority  of
the Board finds this further evidenced by the fact that  on  4  March  2005,
the Air Force Purple Heart Review Board (AFPHRB) considered the  applicant’s
request for the PH and determined that he did not meet the criteria for  the
award.

4.    A majority of the Board also notes that while  the  applicant  may  be
receiving a service-connected disability from the DVA and/or  combat-related
pay for a medical condition resulting from the injury, and  the  injury  was
determined to have been incurred in  the  line  of  duty,  this  in  and  of
itself, does not substantiate his entitlement to the  PH.   In  addition,  a
majority of the Board notes that a 5 June 2004  statement  from  a  civilian
board-certified orthopedic surgeon provided by the applicant indicates  that
his current condition is an aggravation of a pre-existing medical  condition
caused by the initial trauma of the jeep accident of August 1951.  Based  on
a  preponderance  of  the  evidence  presented  and  the  lack  of  official
documentation to support his contention, a majority of the Board  finds  the
applicant has not met his burden of establishing the existence of  an  error
or an injustice with respect to his entitlement  to  the  PH,  and  that  to
provide the requested relief over  50  years  after  the  alleged  incident,
without the benefit of  any  corroborative  evidence,  would  be  unjust  to
actual PH recipients, and serve to minimize  their  personal  sacrifice  and
lessen the significance and  prestige  of  the  award.   Therefore,  in  the
absence of evidence the USAFE/CC either approved the request for the  PH  or
erroneously denied the request, a majority of the Board finds no  compelling
basis to recommend granting the relief sought by the applicant.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the Board finds insufficient evidence of  error  or  injustice
and recommends the application be again denied.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2005-01155
in Executive Session on 7 May 2007, under the provisions of AFI 36-2603:

                 Mr. Wayne R. Gracie, Panel Chair
                 Mr. Wallace F. Beard, Jr., Member
                 Mr. Grover L. Dunn, Member

By majority vote, the Board recommended  denial  of  the  application.   Mr.
Dunn voted to correct the records, but does not wish to  submit  a  Minority
Report.  The following documentary evidence was considered:

    Exhibit F.  Record of Proceedings, dated 9 Aug 05, w/atchs.
    Exhibit G.  Letters, Applicant, dated 15 Aug & 30 Nov 05,
                       w/atch.
    Exhibit H.  Letter, AFBCMR, dated 15 Dec 05.
    Exhibit I.  Letter, Applicant, dated 24 Feb 06, w/atch.
    Exhibit J.  Letter, AFBCMR, dated 20 Mar 06.
    Exhibit K.  Letter, Applicant, dated 22 Mar 06.
    Exhibit L.  Letter, Applicant, dated 19 May 06, w/atch.
    Exhibit M.  Letter, C/M Schultz, dated 22 Jun 06, w/atchs.
    Exhibit N.  Letter, C/M Schultz, dated 28 Aug 06, w/atchs.
    Exhibit O.  Letter, Applicant, dated 17 Oct 06, w/atchs.
    Exhibit P.  Memo, SAF/MRB, dated 11 Dec 06, w/atch.
    Exhibit Q.  Memo, AFPC/DPPPR, dated 25 Jan 07.
    Exhibit R.  Letter, AFBCMR, dated 29 Jan 07.
    Exhibit S.  Letter, Applicant, dated 7 Feb 07, w/atchs.
    Exhibit T.  Letter, Applicant, dated 22 Apr 06 (sic), w/atchs.





                                   WAYNE R. GRACIE
                                   Panel Chair




AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB MD 20762-7002



      After careful consideration of your request for reconsideration of
your application for correction of military records (AFBCMR Docket Number
BC-2005-01155), the majority of the Board determined that the evidence you
presented did not demonstrate the existence of probable material error or
injustice.  The Secretary's designee accepted the recommendation of the
majority and denied your application.

      This decision does not preclude an additional request for
reconsideration, but such a request must be accompanied by newly discovered
relevant evidence that was not available at the time of your original
application.  Absent such additional evidence, further consideration of
your application is not possible.

      BY DIRECTION OF THE PANEL CHAIR





                                                              PHILLIP E.
HORTON
                                                              Chief
Examiner
                                                              Air Force
Board for Correction
                                                              of Military
Records

Attachments:
1.  SAF/MRB Memo
2.  Addendum to Record of Proceedings




MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
            CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXX

      I have carefully reviewed the  evidence  of  record  and  the
recommendation of the  Board  members.   The  majority  found  that
applicant  had  not  provided  substantial  evidence  of  error  or
injustice and recommended the case be denied.  I concur  with  that
finding  and  their  conclusion  that  relief  is  not   warranted.
Accordingly, I accept their recommendation that the application  be
denied.

      Please advise the applicant accordingly.





                                             JOE G. LINEBERGER
                                             Director
                                               Air   Force   Review
Boards Agency